John Velke, a vice president of Fred Meyer, was aware of the practice of
dispatching security personnel to locations where citizens were petitioning, using the
unrelated Marbet injunction to try to make the petitioners leave, and showing the
injunction to police officers. Velke acknowledged that it might be misleading if police
officers were led to believe that the injunction applied to petitioners not connected with
the Marbet matter. Velke testified that Fred Meyer stopped using the Marbet injunction
in that manner in 1990. Velke testified that it had always been the policy of Fred Meyer
not to arrest initiative petitioners. However, evidence was introduced that Mr. DeHahn,
head of Fred Meyer security, had instructed a store manager to place an initiative
petitioner under citizen's arrest on December 31, 1988. Evidence also was introduced
that DeHahn had testified in 1988, in previous litigation concerning the rights of
initiative petitioners to petition at Fred Meyer shopping centers, that he had ordered the
arrests of initiative petitioners. Evidence was introduced that Robert Cornutt, also with
Fred Meyer security, had testified in another case some three months after Stranahan's
arrest that it was company policy to arrest initiative petitioners.

Multnomah County District Attorney Michael Schrunk met in 1988 and
1989 with representatives of Fred Meyer, expressing his view that initiative petitioners
were not criminals, that his office was busy with murders, rapes, and armed robberies,
and suggesting that Fred Meyer resolve its disputes with initiative petitioners through
civil rather than criminal processes. He agreed to pursue one criminal case (the Cargill
case discussed at length below), but indicated that his office would not pursue this type
of criminal trespass case until it received an appellate ruling concerning initiative
petitioners' constitutional rights. Stranahan's arrest, as well as Petersen's 1989 arrest in
Portland, occurred during this period when the District Attorney's office was not
prosecuting this type of trespass case.

Shortly after the Oregon Supreme Court's decision in Whiffen I, it revisited
the issue of initiative petitioning at shopping centers in Fred Meyer, Inc. v. Roberts, 308
Or 169, 777 P2d 406 (1989), decided in July 1989. That case concerned the accuracy of
a ballot title prepared by the Attorney General describing a proposed initiative measure
that would have amended the Oregon Constitution to allow signature-gathering activities
in shopping malls and outside of pedestrian entrances to buildings open to the public.
The Attorney General's ballot title stated that the measure would protect such petitioning
activity. Fred Meyer challenged the accuracy of the ballot title, arguing that the language
implied that the constitutional amendment would protect an existing right. The court
agreed, stating that "Whiffen clearly does not stand for the proposition that there is a
'right' to gather petition signatures on all 'premises open to the public.'" Fred Meyer, 308
Or at 174 (emphasis in original). The court observed that "the state of the law is in issue
and a motivating reason for mounting this initiative effort." Id.

Thus, at the time of Stranahan's arrest, this court had recognized that
petitioners have a right under Article I, section 8, of the Oregon Constitution, to gather
signatures at the Lloyd Center. The Oregon Supreme Court, while expressing no opinion
on that constitutional question, had indicated that broad injunctive relief prohibiting
petitioning would not be appropriate given the important public interests involved in the
initiative process, and further had indicated that the law was unsettled.

"Petitioners were engaged in a constitutionally protected activity. The
interference with Fred Meyer's property interest was minimal or non-existent. Prosecuting defendants for criminal trespass for refusing to obey
a direction to leave the entrance of the store under these circumstances
would render inadequate the people's opportunity to function in their
legislative role and would violate Article IV, section 1." Id. at 348.

See alsoLloyd Center v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II) (Article
IV, section 1, of the Oregon Constitution, confers rights to gather signatures on initiative
petitioners in common areas of large shopping centers, subject to reasonable time, place
and manner restrictions).

Stranahan brought this action against Fred Meyer, claiming false arrest and
seeking compensatory and punitive damages.(9) A jury awarded Stranahan compensatory
and punitive damages, and the trial court subsequently reduced the punitive damage
award to three times the amount of compensatory damages. Stranahan appeals the
reduction of the punitive damage award; Fred Meyer cross-appeals, assigning as error the
trial court's denial of its motion for a directed verdict as well as several evidentiary
rulings. We turn first to Fred Meyer's arguments concerning the trial court's denial of its
motion for a directed verdict.

The tort of false arrest occurs when a person is unlawfully detained by
another. SeegenerallyChrist v. McDonald, 152 Or 494, 52 P2d 655 (1936). Once the
plaintiff has demonstrated that the detention occurred, the law presumes that the
detention was unlawful until the contrary is shown. Easton v. Hurita, 290 Or 689, 692,
625 P2d 1290 (1981). The defendant in a false arrest action must plead and prove that an
arrest was justifiable or lawful in order to avoid liability. Christ, 152 Or at 501.

Fred Meyer argues that the trial court erred in denying its motion for a
directed verdict, because it had, in fact, established that Stranahan was committing the
crime of trespass at the time of her arrest, and thus her arrest was lawful. Fred Meyer
asserts that initiative petitioners do not have a constitutional right to gather signatures at
the shopping center at issue in the present case, because that shopping center is not the
type of shopping center described in Whiffen II, Cargill, Dameron, and similar cases. In
order to address this argument, we must examine the various cases that describe the types
of shopping centers at which initiative petitioners may lawfully gather signatures. The
Oregon Supreme Court's decision in Whiffen II discusses petitioning rights in "large
shopping centers such as the Lloyd Center." 315 Or at 514. Seealso Dameron, 316 Or
at 459, 448 (quoting same language; reversing convictions because state failed to
establish that the Raleigh Hills Fred Meyer shopping center at issue in that case was not
such a shopping center where petitioners had a constitutional right to gather signatures:
"[T]he sum total of the evidence in this case presents a picture of premises that are not
materially different from [the Lloyd Center].").

In Cargill, this court held that initiative petitioners had a constitutional
right to gather signatures at a Fred Meyer shopping center. 100 Or App at 344-45. We
stated that the shopping center at issue there was the modern replacement for a town
square, that it was designed to meet a very wide range of consumer needs, that it had
benches and bulletin boards, and that people congregated at its restaurant for
conversation and social contact. Id. However, this court has emphasized that not all
Fred Meyer shopping centers are necessarily required to allow initiative petitioning
activity. In Fred Meyer, Inc. v. McDonald, 112 Or App 321, 322, 828 P2d 1054, rev den
316 Or 382 (1992), the trial court had denied injunctive relief to Fred Meyer against a
petitioner on the ground that it was bound by the holding in Cargill. This court
disagreed, noting that the holding in Cargill was limited by its facts: the store in question
in Cargill was subject to petitioning because it was a "forum for assembly by the
community." Cargill, 100 Or App at 348. In Dameron, the court's considerations
included the fact that the Fred Meyer shopping center "is completely surrounded by
parking lots that are available for use by anyone visiting the Center for any lawful
purpose, e.g., to shop, eat, bank, browse, visit a barber shop, beauty salon, professional
offices, day care facility, stroll through the garden center, etc." Dameron, 316 Or at 452.
In Safeway, Inc. v. Jane Does 1 through 50, 141 Or App 541, 545, 920 P2d 168 (1996),
this court summarized what is involved in determining whether a shopping center is
required to allow initiative petitioning:

"Whether a right exists under Article IV, section 1, to gather
signatures for initiative petitioners in the common areas of large privately
owned shopping centers open to the public for commercial purposes
depends on more than [the size of the shopping center and the type of
goods it sells]. In cases in which we and the Supreme Court have held that
such a right exists, we have considered nonexclusive factors such as the
size and configuration of the premises, its relationship to other businesses
in the area, whether the premises are bordered by public or private
properties, whether the premises are intersected by public streets and
sidewalks, whether the premises and adjoining multiple privately owned
businesses open directly onto public areas, and whether there are public
transportation stops adjacent to the premises. Also pertinent to the inquiry
are the scope of business endeavors that are included in the surrounding
area and conducted on the premises, the characteristics of the invitation to
the public by the businesses in the area, the availability of areas for the
public to congregate for noncommercial purposes, the number of people
who frequent the premise and the purposes for which the premises and
common areas are used." (Footnote and citations omitted.)

In Wabban, Inc. v. Brookhart, 142 Or App 261, 921 P2d 409, rev den 324 Or 395
(1996), we applied these criteria in a case involving two Home Base stores. We
concluded that initiative petitioners did not have a constitutional right to gather
signatures at those locations, for the following reasons:

"We conclude that the sidewalks and parking lots of the San Raphael and
Beaverton [Home Base] stores are not the modern-day equivalent of town squares.
The scope of noncommercial invitation to these premises is limited. The stores
themselves sell only home improvement items. Neither shopping center in which
the stores are located provides a broad array of commercial enterprises, nor does
either attempt to be a 'one stop' shopping area. There is no evidence that the
store's parking lots or sidewalks are places where the public is consistently invited
to congregate for noncommercial purposes, nor is there evidence that plaintiff has
extended an invitation to the public to use its sidewalks and parking lots for
noncommercial activity by providing areas for the public to congregate or
community bulletin boards. The fact that plaintiffs maintain hotdog carts at both
stores and that a carnival is held once a year on the other side of the San Raphael
shopping center parking lot does not significantly alter the scope of the invitation
to the public." Id. at 266.

With the criteria set forth in previous cases concerning initiative petitioning
at shopping centers in mind, we turn to the present case. The facts, as recited above, are
not in dispute. We view the evidence in the light most favorable to Stranahan, and give
her every reasonable inference that may be drawn from that evidence. Shockey, 313 Or
at 422-23. We review the trial court's ultimate legal conclusion concerning the
lawfulness of Stranahan's conduct as a matter of law. Fred Meyer asserts on appeal that
the trial court should have directed a verdict in its favor on the question whether the
shopping center at issue was one at which initiative petitioners may exercise their rights
under Article IV, section 1, of the Oregon Constitution. For the reasons that follow, we
conclude that the trial court correctly denied Fred Meyer's motion for a directed verdict.

The shopping center at issue in this case is approximately 110,000 square
feet. That is about the same size as the Raleigh Hills Fred Meyer shopping center
discussed in Dameron, and significantly larger than the Hawthorne Fred Meyer shopping
center discussed in Cargill. The shopping center at issue here has parking lots on three
sides, and all of the customer entrances open onto the parking lots. The shopping center
conducts approximately 18,000 transactions per week through the main checkout stands,
excluding sales that occur in the separate departments, such as jewelry and nutrition,
which have their own cash registers. It sells a wide range of consumer products, from
food and beverages to clothing, sporting goods, automotive goods, electronics,
housewares, drugs, and jewelry. It has tenant businesses that provide banking services,
shoe repair, and dry cleaning. A beauty salon and a Vista Optical store also are tenants.
A separate home improvement center is located in a building across a public street.

The dissent's reliance on the United States Supreme Court's First
Amendment case law for its conclusion that Stranahan was violating the criminal trespass
statute is puzzling. ___ Or App at ___ (dissenting slip opinion at 3-7). While this
information is interesting from a historical perspective, it does not directly contribute to
an analysis of initiative petitioning activity protected under Article IV, section 1, of the
Oregon Constitution, and provides no guidance on the interpretation or application of the
criminal trespass or false arrest questions presented in this case. The dissent's reliance on
the United States Supreme Court's takings case law is even more puzzling. ___ Or App
at ___ (dissenting slip opinion 15-16). The dissent purports to address Fred Meyer's
central argument, that Stranahan's arrest was lawful. With no reference to the criminal
trespass statute that Fred Meyer claims that Stranahan was violating, the dissent cites
several treatises on torts (presumably for the proposition that Stranahan's conduct could
have constituted the common law tort of trespass) and several federal takings cases, then
concludes that those sources support its conclusion that Stranahan was violating an
Oregon criminal trespass statute at the time of her arrest. ___ Or App at ___ (dissenting
slip opinion at 15-17). Even if Stranahan's conduct were tortious--an issue that is not
before this court--it simply does not follow that Fred Meyer could arrest her for it. One
is subject to arrest for crimes, not torts. Moreover, even if petitioning in shopping
centers does implicate Fred Meyer's constitutional rights under the takings clauses of the
state and federal constitutions, but see Whiffen II, 315 Or at 506-08 (rejecting such
arguments), it simply does not follow that Fred Meyer could arrest Stranahan, a private
citizen, because its constitutional rights were supposedly being violated by the state. If
Fred Meyer believed that its property was being taken due to initiative petitioning, it
could have initiated an action against the state seeking just compensation. It cannot
arrest private citizens who are not violating any criminal statutes. In sum, the main props
of the dissent's argument that Fred Meyer was entitled to a directed verdict simply are
insufficient to bear the weight of its conclusion that Stranahan was violating a criminal
trespass statute by engaging in initiative petitioning activity outside the Fred Meyer
shopping center at issue here.

Fred Meyer cites no case law in support
of those contentions, but simply argues that if it may not arrest petitioners such as
Stranahan, while its competitors such as Safeway need not allow initiative petitioning, it
is being subjected to unequal treatment. But see Safeway, Inc., 141 Or App at 544
(Safeway was not entitled to blanket injunction prohibiting initiative petitioning at all of
its stores; whether petitioners had a constitutional right to petition required a store-by-store analysis). Fred Meyer's argument is not well taken. The law concerning the rights
of initiative petitioners to petition in shopping centers is identical whether the shopping
center is owned by Fred Meyer, Safeway, or anyone else. The analysis is contingent on
the nature of the shopping center itself, not on its ownership. That the law, when applied
to the facts, might result in one Fred Meyer shopping center not being able to arrest
petitioners for criminal trespass, and one Safeway successfully having petitioners
arrested for criminal trespass (or vice versa), does not mean that the law is being applied
in an unequal manner, in violation of Article I, section 20, or the Fourteenth Amendment.
We reject Fred Meyer's arguments that failing to direct a verdict in its favor violated
Article I, section 20, of the Oregon Constitution, or the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.

Fred Meyer next contends that holding it responsible for Stranahan's false
arrest would violate due process, because the law concerning initiative petitioners' rights
was not entirely clear at the time of Stranahan's arrest. Fred Meyer contends that it acted
in reliance on several trial court rulings enjoining other initiative petitioners, and argues
that liability may not be imposed "for an act that the State of Oregon, acting through its
court system, had declared to be lawful." That argument is flawed for several reasons.
First, the considerations at play when the question is whether a party is entitled to
equitable injunctive relief are quite distinct from the elements of the crime of trespass, as
is clear from a comparison of Whiffen I with Dameron. Second, this court rejected a
virtually identical argument in the previous appeal in this case:

"Defendant relies on a number of trial court decisions that preceded
plaintiff's arrest, including the one that the Supreme Court later reversed in
Dameron, to support its position as to what the law was. However, those
decisions, insofar as they are contrary to the appellate courts' later decisions
in Cargill and Dameron, are not relevant to what the law was at the time of
plaintiff's arrest. The law on October 11, 1989, was what the appellate
courts later said it was in Cargill and Dameron, the events of which
occurred long before October 11, 1989. The earlier trial court decisions
can be relevant to what defendant thought the law was. However, that
mental state, even if it had been conclusively established, is not a defense
to a false arrest action." Stranahan v. Fred Meyer, Inc., 129 Or App 247,
25, 978 P2d 1123, rev den 320 Or 271 (1994) (emphasis in original;
citations omitted).

Fred Meyer next argues that the trial court should have directed a verdict in
its favor because no evidence was presented that it arrested Stranahan or instigated her
arrest. As noted above, we view the evidence in the light most favorable to the
nonmoving party. Sufficient evidence was presented that Fred Meyer's agent,
McClendon, either arrested plaintiff or instigated her arrest. Fred Meyer argues that
Parkerson independently exercised his own judgment in deciding to arrest plaintiff after
being shown the injunction by McClendon, and, by implication, argues that using the
injunction in such a manner was not misleading. We reject those arguments. Viewing
the evidence in the light most favorable to Stranahan, it may be inferred from Parkerson's
testimony and the documentation of the arrest that McClendon himself arrested
Stranahan. Alternatively, again viewing the evidence in the light most favorable to
Stranahan, it may be inferred that McClendon instigated the arrest by showing Parkerson
the Marbet injunction and leading Parkerson to believe that Stranahan was violating that
injunction. The trial court correctly denied Fred Meyer's motion for a directed verdict on
this issue.

Finally, Fred Meyer argues that the trial court should have directed a
verdict for defendant on plaintiff's claim for punitive damages, on the ground that
plaintiff failed to present evidence of malice. Again, viewing the evidence in the light
most favorable to plaintiff, we hold that the evidence in the record is sufficient to create a
jury question concerning punitive damages. Fred Meyer argues, based on authority from
other jurisdictions, that it should not be subject to liability because it was relying in good
faith on previous court orders, e.g., trial court injunctions that it had obtained against
other petitioners. While it is undisputed that Fred Meyer was relying on the Marbet
injunction to secure plaintiff's arrest, that reliance need not be seen as "good faith"
reliance, particularly in the light of the testimony by one of its own vice presidents that
using the injunction to cause a police officer to believe that Stranahan was violating the
injunction could be misleading. That injunction did not enjoin Stranahan. In particular,
the facts surrounding McClendon's use of the injunction and Fred Meyer's knowledge
that the Multnomah County District Attorney would not pursue charges against
Stranahan for the crime of trespass were sufficient to create a jury question on the issue
of punitive damages.

In summary, we reject each of Fred Meyer's arguments that it was entitled
to a directed verdict.

Fred Meyer next contends that the trial court abused its discretion in
allowing Stranahan to amend her complaint on the day of trial to increase the claim for
damages. Stranahan's motion to amend was based on information that she gained in the
week preceding the trial. Fred Meyer does not assert that it was prejudiced in any way by
this amendment. We review the trial court's decision to allow the amendment for abuse
of discretion. Leave to amend shall be "freely given when justice so requires." ORCP 23
A. A court has "ample discretionary authority to allow amendments, provided the
proffered amendment does not substantially change the cause of action or interject an
entire new element of damage." Cutsforth v. Kinzua Corp., 267 Or 423, 433, 517 P2d
640 (1973). The amendment at issue did not add any new elements or alter the cause of
action. Fred Meyer points to no particular prejudice that it suffered as a result of the
amendment. Hagan v. Shore, 140 Or App 393, 398, 915 P2d 435 (1996). We conclude
that the trial court did not abuse its discretion in allowing such an amendment on the day
of trial.

We next turn to Fred Meyer's arguments concerning the admissibility of
certain evidence. As noted above, evidence was introduced at trial that, some two years
after Stranahan's arrest, another initiative petitioner, Kellie Peterson, was shown a
document by Fred Meyer personnel that purported to be a court order regulating
petitioning. Fred Meyer argues that the evidence was irrelevant to the present case, as
well as prejudicial. The trial court held this evidence to be relevant because it "could
lead [the jury] to conclude that Fred Meyer was engaging in a pattern of malicious
conduct against individuals who conducted themselves in a manner similar to the
plaintiff in this case. And it would bear on the question of punitive damages." We agree
with the trial court that this evidence was relevant for those reasons. In determining the
propriety and amount of punitive damages, a jury may consider subsequent similar
misconduct on the part of a defendant. Fred Meyer argues that its conduct toward
Petersen in 1992 was not similar to its conduct toward Stranahan, because it involved a
different initiative petitioner, a different store, and no arrest occurred. However, both
occurrences at least arguably involved some misrepresentation of the legal effect of a
document shown to a petitioner.

Fred Meyer relies on Vandermeer v. Pacific N.W. Develop., 274 Or 221,
230, 545 P2d 868 (1976), for the proposition that, while evidence of other misconduct
toward the plaintiff might be relevant, evidence of conduct involving a third party is not
relevant. Vandermeer does not stand for such a sweeping proposition. In Vandermeer,
evidence was admitted that the defendant, who had performed a citizen's arrest on
plaintiff and others for failing to leave a recreation room, had on another occasion had
one of the same individuals arrested for harassment. That evidence was not relevant, the
court concluded, because it was admitted for the purpose of explaining why the person
arrested was not a troublemaker. Id. at 234-35. The subsequent conduct at issue in that
case was dissimilar to the previous conduct, and the theory of why it might be relevant
was obscure, at best. By contrast, the present case concerns Fred Meyer's actions on two
separate occasions toward individuals who were doing the same thing--gathering
signatures on initiative petitions. The present case also involves similar conduct on the
part of Fred Meyer in allegedly misrepresenting legal documents in an effort to get rid of
the initiative petitioners. Because of the similarity between those events, and because
subsequent similar conduct is relevant to the question of punitive damages, as discussed
below, we are unpersuaded that Vandermeer calls for the exclusion of this evidence.

Fred Meyer also argues that the evidence should have been excluded under
OEC 404(3), which prohibits evidence of bad acts "to prove the character of a person in
order to show that the person acted in conformity therewith." That evidence was not
offered or received for the purpose of demonstrating that Fred Meyer's conduct toward
Peterson made it any more or less likely that defendant acted toward Stranahan in the
manner it did. As discussed below, one of the issues the jury was asked to decide
concerning punitive damages was "the importance to society in deterring similar
misconduct in the future." Thus, whether Fred Meyer had, in fact, engaged in similar
misconduct after the events at issue in the present case was relevant and necessary
information for the jury to consider.

We next turn to the question whether the evidence nonetheless should have
been excluded as overly prejudicial. OEC 403 provides that relevant evidence "may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice[.]" We review for abuse of discretion a trial court's admission of evidence over
an OEC 403 objection. State v. Reyes, 143 Or App 594, 602, 924 P2d 866 (1996). "An
abuse of discretion occurs when a court exercises its discretion to an end not justified by
and clearly against the evidence and reason." Lutz v. State, 130 Or App 278, 285, 881
P2d 171 (1994).

Fred Meyer argues that the evidence was overly prejudicial because the
jury might not understand that, during Stranahan's arrest, McClendon's use of the Marbet
injunction was "completely proper," and that the later representation of the petitioning
rules as a court order to Petersen was simply a "mistake" that had caused no harm to
Petersen. Certainly it is true that the jury might not (and in fact apparently did not) view
the evidence as defendant portrays it. However, the jury was not required to accept Fred
Meyer's explanations of its motives. The question under OEC 403 is whether the
evidence at issue is unfairly prejudicial, i.e., whether it would cause the jury to make its
decision on an improper basis. We do not find that this evidence would have caused the
jury to base its decision on improper factors. We conclude that the trial court did not
abuse its discretion in admitting the evidence.

Fred Meyer also contends that the trial court erroneously admitted evidence
that it had discontinued numerous community activities in its shopping centers in order to
keep courts from ruling that initiative petitioning must be allowed because the shopping
centers were functioning as public forums. The evidence in question was presented after
Perrin, a vice president of public affairs, had testified without objection that Fred Meyer
shopping centers in the past had allowed voter registration and had sponsored food
drives. When asked if Fred Meyer had changed its policies concerning such community
activities because of the possibility that it might be required to allow petitioning activity,
Perrin denied that was the motivation for discontinuing those community activities. At
that point, Stranahan introduced evidence that Perrin had testified in a prior proceeding
in 1992 that Fred Meyer no longer allowed activities such as voter registration and
Campfire sales because of its concern that courts might rule that its shopping centers
were functioning as public forums.

We agree that punitive damages awards are not evaluated based on a simple
formula that compares the ratio of the compensatory damages to the ratio of the punitive
damages. The United States Supreme Court has stated that punitive damages must bear a
"reasonable relationship" to compensatory damages. BMW of North America, Inc., 517
US at ___, 116 S Ct at 1601 (1996). The Court also has indicated that there should be a
"reasonable relationship" between the punitive damages award and the harm that is likely
to result from a defendant's conduct, as well as the harm that actually resulted. Id. Thus,
a punitive damages award 20 times the compensatory damage award might be proper in
one case, but a punitive damages award twice the compensatory damages award might be
excessive in another case. The Court also has indicated that a higher ratio might "be
justified in cases in which * * * the monetary value of noneconomic harm might have
been difficult to determine." Id.

Oregon courts evaluate punitive damage awards by juries based on the
following standard:

"Was the award of punitive damages within the range that a rational juror
would be entitled to award in the light of the record as a whole? The range
that a rational juror is entitled to award depends, in turn, on the statutory
and common law factors that the jury is instructed and permitted to
consider when awarding punitive damages for a given claim."

"Now, to recover punitive damages, Plaintiff has additionally
alleged and must prove in this case by clear and convincing evidence, not
just by a preponderance of the evidence but by clear and convincing
evidence, that in intentionally initiating or causing Plaintiff's arrest that the
Defendant Fred Meyer acted wantonly, that is, acted with a particularly
aggravated deliberate disregard of the rights of Plaintiff.

"* * * * *

"Now, punitive damages may be awarded to the plaintiff, in addition to
compensatory or actual damages, to punish a wrongdoer and to discourage the
defendant and others from engaging in wanton conduct. If you found that the
plaintiff is entitled to damages then you must consider whether to award punitive
damages.

"In considering punitive damages you must first determine whether Fred
Meyer was guilty of wanton misconduct that caused damage to the plaintiff.
Wanton misconduct is conduct amounting to a particularly aggravated, deliberate
disregard of the rights of others. In order to recover punitive damages the plaintiff
must prove that Fred Meyer engaged in such conduct by clear and convincing
evidence, that is evidence that enables you to find that the truth of the facts
asserted is highly probable.

"If you decide to award punitive damages you may properly consider the
following items in fixing the amount. The character of Fred Meyer's conduct,
Fred Meyer's motive, the sum of money that would be required to discourage Fred
Meyer and others from engaging in such conduct in the future, and the income and
assets of Fred Meyer.

"If you decide this issue against Fred Meyer you may award punitive
damages although you are not required to do so because punitive damages are
discretionary. In the exercise of that discretion you may consider the importance
to society in deterring similar misconduct in the future. The amount of punitive
damages may not exceed the sum of $2,000,000 on plaintiff's false imprisonment
claim.

"If you find that Fred Meyer had a good faith belief that it had a legal right
to treat plaintiff as a trespasser then you may not award punitive damages to
plaintiff."

Thus, by awarding punitive damages, the jury necessarily made a factual
finding that Fred Meyer did not have a good faith belief that Stranahan was violating the
criminal trespass law at the time it arrested her. We turn to the criteria that the jury was
instructed to consider in evaluating Fred Meyer's conduct.

The first of these is the "character of Fred Meyer's conduct." The conduct--the arrest--occurred after several appellate courts had concluded that shopping centers
did not have unlimited rights to remove initiative petitioners from their property. The
arrest occurred at a time when Fred Meyer had reason to know that the prosecutor would
decline to prosecute the alleged offense. Moreover, Fred Meyer's agent used an
injunction that did not enjoin Stranahan in a manner that led a police officer to believe
that Stranahan was violating that injunction. The jury reasonably could conclude that
Fred Meyer acted in wanton disregard of Stranahan's rights at the time of the arrest.
Evidence also demonstrated that Stranahan's arrest was not an isolated event. Other
petitioners were subjected to similar treatment, i.e., they were arrested but not
prosecuted. Evidence was presented not only that Fred Meyer used the Marbet
injunction in 1989 and 1990 against petitioners who were not bound by that injunction,
but that in 1992 Fred Meyer presented a petitioner with a set of petitioning rules that
purported to be court-ordered, but was not.

The next criterion that the jury was instructed to consider was Fred Meyer's
motive in having Stranahan arrested. Fred Meyer correctly points out that there was no
evidence that it was motivated by animosity toward Stranahan personally. However, that
does not mean that there was nothing for the jury to consider in this regard. It is clear
that Fred Meyer was motivated by a desire to prevent all petitioning at all of its shopping
centers. The jury was required to evaluate that motive in the light of the fact that several
appellate courts had recognized at the time of Stranahan's arrest that important political
rights were at stake where initiative petitioning was concerned, and that prohibitions of
initiative petitioning at shopping centers would not necessarily be upheld. In terms of
motive, the jury also could consider the contradictory testimony and evidence as to what
Fred Meyer's policies toward initiative petitioners actually were. Fred Meyer's witnesses
in the present proceeding maintained that it had a policy not to arrest initiative
petitioners. That testimony was rebutted by evidence that, in other proceedings, Fred
Meyer had acknowledged that it was its policy to arrest initiative petitioners. That
evidence too was relevant to the jury's consideration as to whether Fred Meyer acted in
wanton disregard of Stranahan's rights as an initiative petitioner.

The jury was next asked to consider the amount of money that would be
required to discourage Fred Meyer and others from engaging in similar conduct in the
future, taking into account defendant's income and assets. Fred Meyer has not argued
that $2 million is unreasonably excessive in the light of its income and assets.

The trial court concluded that a $2 million punitive damage award would
violate due process because it would "disproportionately punish[] the defendant in
relation to other wrongdoers." However, no evidence was presented that any other
shopping centers had instigated arrests of initiative petitioners. (It also bears noting that
the only two appellate cases concerning criminal trespass charges against initiative
petitioners, Dameron and Cargill, involved Fred Meyer shopping centers.) We are not
persuaded that the trial court should have reduced the punitive damages award on that
ground.

As noted above, the jury was instructed to consider the importance of
deterring similar misconduct in the future. Evidence demonstrated that Fred Meyer's
arrest of Stranahan was not an isolated event but was part of an ongoing attempt to
discourage and prevent initiative petitioning at its shopping centers. The initiative
process, however, is an integral part of the Oregon political process, and initiative
petitioning is an important constitutional right. As the Oregon Supreme Court has noted,
the process of gathering signatures on initiative petitions "is a form of political speech."
Whiffen I, 307 Or at 684; see also Meyer v. Grant, 486 US 414, 422, 108 S Ct 1886, 100
L Ed 2d 425 (1988) (describing initiative petitioning as "core political speech").
Stranahan was not only falsely arrested while she was exercising that constitutional right,
but she was arrested because she was exercising that constitutional right. As the
Supreme Court has stated, the ratio of punitive damages to compensatory damages may
be greater if "the monetary value of noneconomic harm [is] difficult to determine."
BMW of North America, 517 US at ___, 116 S Ct at 1602. It is indeed difficult to
determine the monetary value of a noneconomic harm such as infringement on a
constitutional right to engage in the type of political activity at issue here. However, the
harm at issue certainly is not de minimis. Arrests in the course of, and because of,
constitutionally protected political activity such as initiative petitioning certainly may
have a chilling effect on the exercise of the constitutional right involved. Such a chilling
effect extends beyond the plaintiff in this case, to every Oregonian who has a right to
engage in such protected activity.

In this case, the punitive damages awarded by the jury were 16 times
greater than the compensatory damages. The economic harms--the compensatory
damages--were not great. The noneconomic harms, to Stranahan's right to participate in
the Oregon political process in a manner guaranteed by the Oregon Constitution, were
much greater. Given the importance of the right involved, we are unable to say that the
jury's award of punitive damages 16 times greater than the relatively small compensatory
damage award was not "within the range that a rational juror would be entitled to award
in the light of the record as a whole." Oberg, 320 Or at 551.

Reversed on appeal and remanded with instructions to reinstate the jury's
verdict; affirmed on cross-appeal.

LEESON, J. pro tempore, concurring.

This action for false arrest and compensatory and punitive damages arose
out of Stranahan's attempt to gather signatures for an initiative petition while standing
near the door of a Fred Meyer store located at the corner of Southeast 82nd Avenue and
Foster Road in Portland. The property on which she stood is in a privately owned Fred
Meyer shopping center. Stranahan was arrested for trespass after she was asked to leave
the property and refused to do so. A jury awarded Stranahan compensatory and punitive
damages.

Central to our resolution of the issues in this appeal is determining whether
Stranahan had a right to stand outside a Fred Meyer store on property that is part of a
Fred Meyer shopping center to gather signatures for an initiative petition. Decisions of
the Oregon Supreme Court make clear that she had a right to do so, subject to reasonable
time, place, and manner restrictions. Consequently, I concur only in the result. I write
separately to explain why, in my view, the cases on which the lead opinion relies
misconstrue the relevant Oregon Supreme Court cases. In the process, I will explain why
the dissent's limitation of the right to gather signatures to situations where that activity is
within "the scope of the owner's invitation to the public," ___Or App at ___ (dissenting
slip opinion at 4), is misconceived.

The Oregon Supreme Court has held that there is a limited right under
Article IV, section 1, of the Oregon Constitution, to enter onto the property of a privately
owned shopping center that is open to the public for commercial purposes to gather
signatures for initiative petitions. Those who do so must act reasonably, quietly, and
peaceably. The right to gather signatures for such petitions is subject to reasonable time,
place, and manner restrictions imposed by the owner of the shopping center so that the
activity of gathering signatures does not interfere with the shopping center's commercial
activities.

The starting point for understanding Oregon's approach is Marsh v.
Alabama, 326 US 501, 66 S Ct 276, 90 L Ed 265 (1946). In Marsh, the Court
confronted the question of when, under the United States Constitution, private property
owners may impose restrictions on the exercise of the public's First Amendment rights of
speech and press. The Court adopted the following rule:

"The more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it." Id. at 506
(emphasis supplied).

Although the facts of Marsh involved a wholly owned company town, nothing in the
Court's analysis suggested that the rule applies only in cases involving wholly owned
company towns. Indeed, in Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, 391 US 308, 316-20, 88 S Ct 1601, 20 L Ed 2d 603 (1968), the Court
relied on the rule in Marsh when it forbade the owner of a private shopping mall from
prohibiting union picketing of a store in the mall. According to the Court, the mall
served as the functional equivalent of a town business district, which rendered the mall
public for purposes of the First Amendment. Id. at 319.

In Lloyd Corporation v. Tanner, 407 US 551, 570, 92 S Ct 2219, 33 L Ed
2d 131 (1972), the Court qualified the ruling in Logan Valley Plaza, holding that, under
the First Amendment, Vietnam War protesters were not entitled to distribute handbills in
the privately owned Lloyd Center. In that case, the Court focused on the scope of the
invitation to the public:

"The invitation is to come to the Center to do business with the tenants.
* * * There is no open-ended invitation to the public to use the Center for
any and all purposes, however incompatible with the interests of both the
stores and the shoppers whom they serve." Id. at 564-65.

Four years later, the Court overruled Logan Valley Plaza in a decision in
which it concluded that striking employees of a shoe company warehouse who decided to
picket the company's retail stores were not entitled to any First Amendment protection
and that shopping centers are not the functional equivalent of town squares. Hudgens v.
NLRB, 424 US 507, 518-21, 96 S Ct 1029, 47 L Ed 2d 196 (1976). Attention then
turned to whether the results would be the same under state constitutions.

"'It bears repeated emphasis that we do not have under consideration the
property or privacy rights of an individual homeowner or the proprietor of
a modest retail establishment. As a result of advertising and the lure of a
congenial environment, 25,000 persons are induced to congregate daily to
take advantage of the numerous amenities offered by the [shopping center
there]. A handful of additional orderly persons soliciting signatures and
distributing handbills in connection therewith, under reasonable regulations
adopted by defendant to assure that these activities do not interfere with
normal business operations would not markedly dilute defendant's property
rights.'" Id. at 910-11, 592 P2d at 347-48 (emphasis supplied; citation
omitted; brackets in original) (citing Diamond v. Bland, 11 Cal 3d 331,
345, 521 P2d 460, 470 (1974) (Mosk, J., dissenting)).

"Our reasoning in Lloyd * * * does not ex proprio vigore limit the
authority of the State to exercise its police power or its sovereign right to
adopt in its own Constitution individual liberties more expansive than those
conferred by the Federal Constitution. * * * It is, of course, well
established that a State in the exercise of its police power may adopt
reasonable restrictions on private property so long as the restrictions do not
amount to a taking without just compensation or contravene any other
federal constitutional provision." Id. at 81 (citations omitted).

The rule that I summarized at the outset, ___ Or App at ___ (concurring
slip opinion at 2), emerged in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446
(1993) (Whiffen II). In that case, the Supreme Court endorsed the language in Marsh that
commonly is accepted as the rule of that case:

"'The more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it.'" Id. at 510 (citing
Marsh, 326 US at 506).

The Whiffen II court also declared that Article IV, section 1, confers on persons seeking
signatures on initiative petitions a limited right to go onto private property to which the
public has been invited. Id. at 511. In reaffirming Oregon's "long-established tradition
of respect for the initiative process," the court reasoned that

"to prohibit the gathering of signatures on initiative petitions in the
common areas of large shopping centers such as the Lloyd Center would
'impinge on constitutional rights' conferred on the citizens of this state by
the provisions of Article IV, section 1, of the Oregon Constitution. Such
rights, however, are subject to reasonable time, place, and manner
restrictions[.]" Id. at 514.

According to the court, its holding in Whiffen II was "based largely upon acceptance of
the rule of Marsh v. Alabama" and its decision in Whiffen I. Id. The holding also was
limited "to the facts of this case, which involve the common areas of a large shopping
center such as the Lloyd Center." Id. (emphasis supplied).

The analysis in Whiffen II focused on where persons seeking petition
signatures were entitled to go. Contrary to the dissent's suggestion, Whiffen II did not
endorse the proposition that "the scope of the public's right to use private property
depends on the scope of the invitation to use it." ___Or App___ (dissenting slip opinion
at 11). Neither did the Supreme Court in Whiffen II base its holding on whether "the
public has been invited [to the shopping center] for community assembly." Id. at ___
(dissenting slip opinion at 11). As explained above, the rule of Marsh, reflected in
Whiffen II, is that "'[t]he more an owner, for his advantage, opens up his property for use
by the public in general, the more do his rights become circumscribed.'" Whiffen II, 315
Or at 510 (emphasis supplied) (citing Marsh, 326 US at 506). The dissent rewrites that
rule to mean: The more a property owner, for the advantage of the public, opens up his
property for use by the public in general, the more do his rights become circumscribed.
That simply is not what either Marsh or WhiffenII says. It is the scope of the invitation
to the public to use a shopping center for the property owner's advantage that matters
when determining whether initiative petitioners may exercise a limited right to gather
signatures on private property.

As the lead opinion notes, evidence in the record reveals that the Fred
Meyer shopping center in this case

"endeavors to provide a wide range of products and services on the
premises because it wants its customers to meet all of their consumer needs,
and spend all of their consumer dollars, at the shopping center." ___ Or
App ___ (lead slip opinion at 17).

Fred Meyer has invited the public to its shopping center for its own advantage and in the
hope that its customers will give the store all of their shopping dollars. Consequently,
under the test of Marsh, as adopted in Whiffen II, Fred Meyer's rights are circumscribed
by the constitutional rights of the public to seek signatures on initiative petitions.

The court's specific task in Whiffen II was to respond to a challenge to the
restrictions on petition signature gathering that the Lloyd Center had adopted in the wake
of Whiffen I. In evaluating the Lloyd Center's time, place and manner regulations, the
court applied what was by then a familiar test: whether persons seeking signatures on
initiative petitions in the common areas of the Lloyd Center, reasonably regulated, would
substantially interfere with the Lloyd Center's commercial enterprise. Whiffen II, 315 Or
at 519.

Like Whiffen II, Clackamas Town Center Assoc. v. Wolf, 315 Or 557, 849
P2d 477 (1993), also involved a challenge to time, place and manner restrictions on
persons seeking signatures on initiative petitions. The court again recognized the right of
those persons to seek signatures in designated common areas of the Clackamas Town
Center, subject to reasonable regulations designed to prevent the signature gathering
activity from interfering substantially with the commercial enterprise. Id. at 560.

The dissent dismisses the Supreme Court's most recent pronouncement on
the subject, State v. Dameron, 316 Or 448, 853 P2d 1285 (1993), as representing only
the opinion of two justices. ___ Or App ___ (dissenting slip opinion at 12 n 7). I
disagree that Dameron can be dismissed so offhandedly. The issue there was whether
the defendant remained unlawfully on the premises of a Fred Meyer shopping center
when he stood on the privately owned sidewalk outside an entrance to the store. None of
the concurring justices disagreed with the following statement by Justice Van
Hoomissen:

"The dissent argues that there is no state constitutional right to
gather petition signatures on private property. The dissent is wrong.
Whiffen II, [315 Or at 500]; Clackamas Town Center Assoc.[, 315 Or at
557.]" Id. at 462.

In sum, a lead of the Supreme Court in Dameron reaffirmed that the rule of Whiffen II
remains the law of Oregon, and a lead of that court agreed that a person seeking
signatures for an initiative petition did not remain unlawfully on the premises of a Fred
Meyer shopping center by standing on the privately owned sidewalk outside one of the
entrances to the store.

To reiterate: The Oregon Supreme Court has recognized that, under Article
IV, section 1, of the Oregon Constitution, signature gatherers have a limited right to enter
onto the property of a privately owned shopping center that is open to the public for
commercial purposes to gather signatures for initiative petitions. Those who do so must
act reasonably, quietly and peaceably. The right is subject to reasonable time, place and
manner restrictions imposed by the owner of the shopping center so that the activity of
gathering signatures does not interfere with the shopping center's commercial activities.
Under that rule, there is no question that the lead opinion is correct in concluding that
defendant was not entitled to a directed verdict.

The recent case law from this court on which the lead opinion relies to
support its conclusion is far narrower than are the Supreme Court's decisions. In 1990,
we stated that:

"It is implicit in Article IV, section 1, that the people must have
adequate opportunities to sign the petitions that are necessary for them to
act as legislators." State v. Cargill, 100 Or App 336, 343, 786 P2d 208
(1990), aff'd by an equally divided court 316 Or 492, 851 P2d 1141 (1993).

The Supreme Court agreed with that statement in Whiffen II. 315 Or at 512. However,
in Cargill we also held that:

"The Fred Meyer store at which defendants were arrested is a
modern replacement for the town square or park. It is open to the public,
and citizens are invited to come and congregate on the premises." 100 Or
App at 344 (emphasis supplied).

In that part of the opinion, we did not distinguish between citizens who
congregate for commercial or noncommercial purposes. However, in deciding whether
signature gatherers for initiative petitions could stand on the sidewalk between the
parking lot of the Fred Meyer store at 3805 S.E. Hawthorne in Portland and the store's
main entrance, we focused on the nature of the invitation to use the property and
concluded, based on the facts of that case, that:

"Fred Meyer's invitation to the public was broad and for more than just
commercial activity. Its premises, by reason of the owner's invitation,
became a forum for assembly by the community." Id. at 348 (emphasis
supplied).

We have continued to apply the tests from Cargill without recognizing that, since the
Supreme Court affirmed it by an equally divided court in a nonprecedential decision, that
court has developed a different rule, explained above, for protecting the limited rights of
signature gatherers under Article IV, section 1. In 1996, for example, we acknowledged
Whiffen II for the proposition that

"'prohibit[ing] the gathering of signatures on initiative petitions in the
common areas of large shopping centers such as the Lloyd Center would
"impinge on constitutional rights" conferred on the citizens of this state by
the provisions of Article IV, section 1, of the Oregon Constitution.'"
Wabban, Inc., v. Brookhart, 142 Or App 261, 264, 921 P2d 409, rev den
324 Or 395 (1996) (citing Whiffen II, 315 Or at 514).

However, we applied the test of Cargill, not Whiffen II, in analyzing "[t]he scope of
noncommercial invitation to [come to HomeBase]," and in concluding that "the
sidewalks and parking lots of the San Raphael and Beaverton stores are not the modern-day equivalent of town squares." Wabban, 142 Or App at 266. Whether a commercial
enterprise has the characteristics of a town square is a fact-intensive inquiry, as
evidenced by the factors we considered in Wabban. We employed that same
methodology in Safeway, Inc. v. Jane Does 1 through 50, 141 Or App 541, 545, 920 P2d
168 (1996), where we identified at least ten "nonexclusive factors" for determining
whether a Safeway store was a public forum where members of the public have the right
to engage in signature gathering on initiative petitions. The reasoning in those cases
fuels the lead opinion's analysis here. ___Or App ___ (lead slip opinion at 13-17). In
my view, we should have applied the rule of Whiffen II, described above, in Wabban and
Safeway and should do so here. Nonetheless, I agree with the result in the lead opinion
in this case.

LANDAU, J., dissenting.

At issue in this case is the extent to which Fred Meyer has the right to
exclude a member of the public from gathering initiative petition signatures on the
premises of its Foster Road store. The precise nature of the public's right to use private
property for that purpose has proved to be among the most divisive issues in the appellate
courts of this state in recent years. So I suppose that it will come as no surprise that, in
this case, the court has produced three opinions expressing three very different views on
the matter. It is, however, an issue of exceeding importance, one that I hope will attract
the attention of the Supreme Court. In the pursuit of that hope, I offer my dissenting
view concerning the lead and concurring opinions and set forth what I believe to be a
correct view and application of the controlling law.

The concurring opinion takes a different approach. Based principally on a
very broad reading of a 1946 United States Supreme Court decision, it contends that the
Fred Meyer store in this case is subject to a public right to collect initiative petition
signatures because Fred Meyer "has invited the public to its shopping center for its own
advantage and in the hope that its customers will give the store all of their shopping
dollars." ___ Or App at ___ (concurring slip opinion at 10). I disagree with the
concurrence in two respects. First, in my view, it is premised on an inaccurate reading of
seminal United States Supreme Court case law; indeed, it is based on a reading that both
the United States Supreme Court and the Supreme Court of this state have rejected.
Second, its implications are far-reaching and at odds with the applicable cases. The
concurrence, in fact, candidly acknowledges that adoption of its reasoning would
necessitate overruling a number of prior decisions of this court.

As I read the case law, Article IV, section 1, of the Oregon Constitution
grants the people a right to collect initiative petition signatures on some private property.
Precisely which property is subject to that right depends on the extent to which the
private property owner has invited the public to treat the property as public property, that
is, to assemble on it for noncommercial purposes. Various factual considerations may
reveal a greater or lesser invitational scope, but the focus always is on the extent to which
the property owner has encouraged members of the public to assemble for
noncommercial purposes. Applying that test to the facts of this case, I conclude that Fred
Meyer has demonstrated that its Foster Road store is not subject to the right of the public
to gather initiative petition signatures on its premises. Accordingly, I would reverse on
Fred Meyer's cross-appeal on that ground and would not reach the other matters that the
majority addresses in its opinion.

The starting point for any analysis of the law regarding the right of the
public to use private property for the purpose of conducting constitutionally protected
political activity is the United States Supreme Court's decision in Marsh v. Alabama, 326
US 501, 66 S Ct 276, 90 L Ed 265 (1946). In that case, Marsh was arrested for
distributing religious literature on the sidewalk of a suburban "town" owned in its
entirety by a private business entity. The town had "all the characteristics of any other
American town," except for the fact that it was privately owned. Id. at 502. It had

"residential buildings, streets, a system of sewers, a sewage disposal plant
and a 'business block' on which business places are situated. A deputy of
the Mobile County Sheriff, paid by the company, serves as the town's
policeman. Merchants and service establishments have rented the stores
and business places on the business block and the United States uses one of
the places as a post office. * * * [The town residents] make use of a
company-owned paved street and sidewalk located alongside the store
fronts in order to enter and leave the stores and the post office. * * * In
short the town and its shopping district are accessible to and freely used by
the public in general and there is nothing to distinguish them from any
other town and shopping center except the fact that the title to the property
belongs to a private corporation."

Id. at 502-03. Marsh argued that her arrest violated her constitutional rights of freedom
of press and religion. The Court agreed. Writing for a majority of the Court, Justice
Black explained that merely because property is held in private ownership does not
necessarily mean that it is not subject to public use. Depending on the scope of the
owner's invitation to the public, the property may be subject to a public right of use:

"The more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it. Thus, the owners of
privately held bridges, ferries, turnpikes and railroads may not operate them
as freely as a farmer does his farm. Since these facilities are built and
operated primarily to benefit the public and since their operation is
essentially a public function, it is subject to state regulation."

Id. at 506 (citation omitted). Because the owners of the company town had given the
private space all of the attributes of a public municipality, the Court held, the owners had
opened the space broadly for public use. Id.

The Court arrived at a similar result, although by different reasoning, in
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 US 308, 88
S Ct 1601, 20 L Ed 2d 603 (1968). In that case, members of a union picketed in a parcel
pick-up area adjacent to a store located in a large shopping center. The Court held that
the picketers could not be enjoined from exercising their rights of free expression on that
private property, because the shopping center was the "functional equivalent" of a
downtown business district. Id. at 325. Interestingly, the author of the majority in Marsh
disagreed with the majority in Logan Valley Plaza. Justice Black complained that, under
Marsh, the public has a right to use private space for expressive purposes only when the
property has "all the attributes of a town," not just the appearance of a shopping center.
Id. at 332 (Black, J., dissenting) (emphasis in original).

The Court ultimately overruled Logan Valley Plaza. In Lloyd Corp. v.
Tanner, 407 US 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972), the lower court concluded
that the Lloyd Center was the functional equivalent of a downtown business district and,
on that basis, enjoined the Lloyd Center from preventing members of the public from
exercising their First Amendment rights on the premises. The Court reversed,
concluding that the lower court erred in focusing on the equivalency of the shopping
center with a downtown business district. The Court instead adopted the reasoning of
Justice Black's dissent in Logan Valley Plaza. Focusing on the scope of the Lloyd
Center's invitation to the public, the Court held that, because "[t]here is no open-ended
invitation to the public to use the Center for any and all purposes, however incompatible
with the interests of both the stores and the shoppers whom they serve[,]" there was no
basis for requiring the private property owner to allow its premises to be used by the
public for expression purposes. Id. at 565.

Then, in Hudgens v. NLRB, 424 US 507, 96 S Ct 1029, 47 L Ed 2d 196
(1976), the Court held that members of a striking union did not have the right to picket a
store located in a large shopping mall. The Court expressed its intention to "make clear
now, if it was not clear before, that the rationale of Logan Valley did not survive the
Court's decision in the Lloyd case." Id. at 518.

Meanwhile, the issue began to surface in Oregon. In Lloyd Corporation v.
Whiffen, 89 Or App 629, 750 P2d 1157 (1988), aff'd on other grounds 307 Or 674, 773
P2d 1294 (1989) (Whiffen I), the trial court issued an injunction prohibiting members of
the public from entering the Lloyd Center to gather initiative petition signatures or
otherwise exercise their rights of free expression. We reversed, holding that completely
prohibiting the petitioners from collecting signatures interfered with their rights of free
expression guaranteed by Article I, section 8, of the Oregon Constitution. We expressly
based our opinion on the nature of the Lloyd Center and the broad invitation that it
issued to the public to use its premises for public activities:

"Lloyd Center is large, covers numerous city blocks, contains many
separate business and professional establishments and is open to the public.
Plaintiff seeks to draw masses of people to it each day, provides large
parking areas and seeks to create an environment conducive to shopping. It
has provided interior public walkways and malls, with benches, flower
gardens and music designed to encourage the public to windowshop, meet
friends, congregate and pass the time. Plaintiff's invitation to the public is
broad and for more than just commercial activity."

In State v. Cargill, 100 Or App 336, 786 P2d 208 (1990), aff'd by an
equally divided court 316 Or 492, 851 P2d 1141 (1993), this court again addressed
whether members of the public have a right to exercise their rights of free expression on
private property--specifically, another Portland Fred Meyer store. The court this time
based its holding on Article IV, section 1, of the Oregon Constitution, by which section
the people reserved the powers of initiative and referendum. Even so, the court once
again focused on the extent to which the shopping center was open to the public for
noncommercial purposes. The court noted that the particular store at issue "is a modern
replacement for the town square or park. It is open to the public, and citizens are invited
to come and congregate on the premises." Id. at 344. After reciting such facts about the
characteristics of the store, the court concluded, recalling verbatim its rationale in
Whiffen I:

"In this case, Fred Meyer's invitation to the public was broad and for
more than just commercial activity. Its premises, by reason of the owner's
invitation, became a forum for assembly by the community."

It must be recalled that the rule in Marsh was a narrow one, based on the
extent to which the property owner opened its property to public use; as subsequent cases
made clear, Marsh was not based on the extent to which a shopping center served as a
modern replacement for a traditional downtown commercial area. The majority in
Whiffen II emphasized the narrowness of the holding in Marsh by quoting from that case
its explanation that the scope of the public's right to use private property depends on the
scope of the invitation to use it. Id. at 510 (quoting Marsh, 326 US at 506). It also must
be recalled that the California Supreme Court's decision in Pruneyard provided no
explanation as to which properties are subject to the state constitutional right to solicit
initiative petition signatures. Indeed, the majority in Whiffen II referred to the state court
decision in Pruneyard for a different purpose; the court quoted from Pruneyard the
conclusion that allowing members of the public to collect signatures at a shopping center
would not interfere substantially with the business of the center. Id. at 513 (quoting
Pruneyard, 23 Cal 3d at 907, 592 P2d at 345). Thus, it is apparent that the court in
Whiffen II intended its holding to apply not merely to any large shopping center but
solely to the common areas in large shopping centers to which the public has been
invited for community assembly.

"In cases in which we and the Supreme Court have held that such a right
exists, we have considered nonexclusive factors such as the size and
configuration of the premises, its relationship to other businesses in the
area, whether the premises are bordered by public or private properties,
whether the premises are intersected by public streets and sidewalks,
whether the premises and adjoining multiple privately owned businesses
open directly onto public areas, and whether there are public transportation
stops adjacent to the premises. Also pertinent to the inquiry are the scope
of business endeavors that are included in the surrounding area and
conducted on the premises, the characteristics of the invitation to the
public by the businesses in the area, the availability of areas for the public
to congregate for noncommercial purposes, the number of people who
frequent the premises and the purposes for which the premises and
common areas are used."

Id. at 545 (emphasis supplied; footnote omitted). I acknowledge that Safeway is not
terribly clear in its description of the applicable law and that the decision could be read to
suggest that the scope of an invitation to use private property as public property is but
one of many factors to be taken into account. Any doubt about the role of the scope of
invitation in the decision-making calculus, however, was resolved shortly thereafter by
our most recent decision on the subject.

In Wabban, Inc. v. Brookhart, 142 Or App 261, 921 P2d 409, rev den 324
Or 395 (1996), we held that two HomeBase retail outlets are not subject to the public's
Article IV, section 1, right to collect initiative petition signatures on private premises.
We characterized the nature of the question before us in the following terms:

"The question before us is whether these premises, by reason of
HomeBase's express or implied invitation to the public, are a forum for
assembly by the community."

"We conclude that the sidewalks and parking lots of [the two stores] are
not the modern-day equivalent of town squares. The scope of
noncommercial invitation to these premises is limited. The stores
themselves sell only home improvement items. Neither shopping center in
which the stores are located provides a broad array of commercial
enterprises, nor does either attempt to be a 'one stop' shopping area. There
is no evidence that the store's parking lots or sidewalks are places where
the public is consistently invited to congregate for noncommercial
purposes, nor is there evidence that plaintiff has extended an invitation to
the public to use its sidewalks and parking lots for noncommercial activity
by providing areas for the public to congregate or community bulletin
boards."

Id. at 266 (emphasis supplied). We took note of the fact that there were hot dog carts at
each store and that each store held a carnival in the parking lot each year. We
nevertheless held that such activities did "not significantly alter the scope of the
invitation to the public." Id. We further noted that, although the stores were surrounded
by large parking lots, on which the petition gatherers had attempted to exercise their
rights to petition, those premises "are primarily premises that provide parking areas for
vehicles and egress and ingress for shoppers." Id.

The lead opinion demonstrates the very problem. Its entire analysis of the
issue is as follows:

"Like the shopping center at issue in Cargill, the shopping center at issue
here is designed to meet a wide range of consumer needs. The shopping
center endeavors to provide a wide range of products and services on the
premises because it wants its customers to meet all of their consumer needs,
and spend all of their consumer dollars, at the shopping center. Fred Meyer
has, for its advantage, extended a broad invitation to the public to come to
its shopping center. None of the entrances, including entrances to the
tenant businesses, is accessible from a public sidewalk. A public street
separates the main shopping from the home improvement center. A wide
array of commercial services is available at this shopping center and in the
surrounding area. In sum, the Fred Meyer shopping center at issue here is
physically similar to those at issue in Dameron and Cargill, it is used for
similar purposes, and the scope of its invitation to the public is equally
broad. This evidence supports the trial court's conclusion that the shopping
center at issue here is a 'large shopping center,' as that term as been used in
cases such as Dameron."

___ Or App ___ (lead slip opinion at 16-17). Thus, the lead opinion's conclusion rests
on (1) the size of the store, (2) the fact that it offers a wide variety of opportunities for
consumers to spend their money, and (3) the fact that none of the entrances is accessible
from a public sidewalk. The lead opinion never explains the free-standing constitutional
significance of those factors either in the abstract or in the factual context of this case.
The lead opinion, for example, states that the Foster Road store is "large." How large is
large enough to be constitutionally significant? The lead opinion similarly states that the
store offers a wide variety of consumer products and attempts to persuade consumers to
spend all their dollars on the premises. How wide is wide enough to create a
constitutional right? Manifestly, considering the factors that the lead opinion does in a
constitutional vacuum leads to a decision that cannot satisfactorily be defended.

I turn then to the concurring opinion. As I understand it, the linchpin of the
concurrence is the United States Supreme Court's decision in Marsh. According to the
concurrence, the rule of Marsh can be summarized by reference to the Court's
observation that:

"'The more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it.'"

___ Or App at ___ (concurring slip opinion at 2) (quoting Marsh, 325 US at 506). The
concurrence places great emphasis on the words "for his advantage":

"It is the scope of the invitation to the public to use a shopping center for
the property owner's advantage that matters when determining whether
initiative petitioners may exercise a limited right to gather signatures on
private property."

___ Or App at ___ (concurring slip opinion at 9) (emphasis in original). In the view of
the concurrence, it is that very broad reading of Marsh that the Supreme Court of this
state adopted in Whiffen II. Accordingly, the concurrence then concludes that, because
there is evidence that Fred Meyer "has invited the public to its [Foster Road] shopping
center for its own advantage," Fred Meyer cannot exclude the public from collecting
initiative petition signatures at that store. Id.

My principal disagreement with the concurrence concerns its premise, that
is, its broad reading of Marsh. In my view, the concurrence relies unduly on a single
sentence extracted from its factual context. The concurrence acknowledges that Marsh
involved a private landowner that treated its property as public property, but it contends
that nothing in the United States Supreme Court's analysis suggests that that is relevant to
the inquiry. Such a reading of Marsh, however, is at odds with the decision itself, with
subsequent United States Supreme Court cases and with our own Supreme Court's
reading of the opinion.

As to the Marsh decision itself, the quotation on which the concurrence
relies is followed by an explanation that makes clear the Court's intentions:

"Thus, the owners of privately held bridges, ferries, turnpikes and railroads
may not operate them as freely as a farmer does his farm. Since these
facilities are built and operated primarily to benefit the public and since
their operation is essentially a public function, it is subject to state
regulation."

Marsh, 326 US at 506 (emphasis supplied). Thus, the focus of the Court's analysis was
not--as the concurrence suggests--merely the fact that the private landowner invited the
public onto the property for its advantage, but instead that the private landowner invited
the public to treat the property essentially as public property, to serve, in the Court's
words, "a public function."

That reading is borne out by the Court's subsequent cases, as I have
endeavored to demonstrate in some detail. Although the Court flirted briefly with a
broader interpretation of the decision in Logan Valley Plaza, it later overruled Logan
Valley Plaza and, in its Lloyd and Hudgens decisions, explained Marsh in precisely the
terms that I have described. The point is critical, because it defines the state of the law at
the time of the Oregon Supreme Court's decision in Whiffen II and therefore defines what
the court in that a case referred to when it "endorsed" the Marsh holding. To conclude
that the Oregon Supreme Court actually intended to endorse in Whiffen II the Logan
Valley Plaza view of the Marsh decision, as the concurrence suggests, requires an
assumption that the court in Whiffen II intended to adopt--without any explanation that it
was doing so--a view of federal constitutional law that already had been abandoned by
the federal courts.

That the Oregon court in Whiffen II did not adopt the concurrence's view of
Marsh also is borne out by subsequent decisions of the Oregon courts. In Huffman and
Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993), the court held that the
First Amendment did not preclude an award of punitive damages for the defendants'
trespass on private property to protest a logging operation. The court explained:

"[T]he First Amendment does not apply to private property that is not
devoted to public use. For an owner of private property to be subject to the
proscriptions of the First Amendment, the property must 'assume to some
significant degree the functional attributes of public property devoted to
public use.' Central Hardware Co. v. NLRB, 407 US 539, 547, 92 S Ct
2238, 33 L Ed 2d 122 (1972). Devotion of private property to public use
requires, at a minimum, the owner's invitation to the general public to enter
the premises. See Marsh v. Alabama, 326 US 501, 506, 66 S Ct 276, 90 L
Ed 265 (1946) ('The more an owner * * * opens up his property for use by
the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it.')."

317 Or at 461. If the concurrence is right about Marsh, then the Oregon Supreme Court
simply was wrong in Huffman and Wright Logging Co. when it said that the First
Amendment does not apply to private property unless the property "assume[s] to some
significant degree the functional attributes of public property devoted to public use." Id.
In my view, the Oregon court was entirely correct.

Aside from my disagreement with the concurrence's faulty premise, I am
concerned about its consequences. The concurrence contends that the public right to
collect initiative petition signatures on private property depends on whether the private
property owner opens the property to the public "for his advantage." Thus, in this case,
the concurrence concludes that, because there is evidence that "Fred Meyer has invited
the public to its shopping center for its own advantage and in the hope that its customers
will give the store all of their shopping dollars[,]" Fred Meyer cannot exclude members
of the public from the entrance to its Foster Road store. ___ Or App at ___ (concurring
slip opinion at 10). The same could be said, however, of virtually any commercial
enterprise. Any retail store, from a "mom and pop" grocery store, to a "7-Eleven"-type
convenience store, to a regional shopping center, invites the public to its premises for its
advantage and in the hope that the public will spend as much money there as possible.
To be sure, the concurrence is careful to describe its proposed rule of law solely with
reference to "shopping centers." My point is that there is no logical justification for
limiting the rule in that fashion, and such an extraordinarily sweeping rule finds no
support in either federal or state case law.

In my view, the proper disposition of this case is to examine the legal
significance of the facts as we did in Wabban, namely, to examine, in the light of the
factors described in the case law, "whether the premises, by reason of [the owner's]
express or implied invitation to the public, are a forum for assembly by the community."
Wabban, 142 Or App at 265. In that light, the record in this case fails to reveal such an
invitation. The Foster Road store does occupy 110,000 square feet. By itself, however,
that factor has no significance. The store sits in isolation in the middle of a parking lot.
It is not located in a "shopping center" in any reasonable sense of the term. As in
Wabban, there is no evidence that the parking areas or any other areas are "places where
the public is consistently invited to congregate for noncommercial purposes[.]" Id. at
266. As in Wabban, those areas instead are used exclusively for ingress and egress by
patrons. The store does provide a wide variety of consumer products. However, unlike
the premises at issue in Whiffen I, Cargill and Whiffen II, there are no malls, no public
benches, no gardens, no theaters, no meeting rooms, no public art displays, no fountains
and no public bulletin boards. There are, in fact, none of the "common areas" to which
the Supreme Court in Whiffen II said the right applies. There is no evidence of a broad
invitation to the public to do anything other than purchase consumer goods. Such a
limited invitation, in and of itself, is insufficient if the right to gather initiative petition
signatures is not to extend to virtually any successful retail enterprise.

In short, in the light of a less selective consideration of the relevant factual
criteria and in the context of a constitutional rule that focuses on the extent of the
premises owner's express or implied invitation to the public, I conclude that, as a matter
of law, the Foster Road Fred Meyer store is not subject to the right of the public to gather
signatures pursuant to Article IV, section 1. Therefore, I would reverse the trial court on
Fred Meyer's cross-appeal on that ground.

1. Although McClendon claimed that a written policy existed, Fred Meyer
was unable to produce any written policy in this litigation. A vice president of Fred
Meyer who was one of McClendon's supervisors, John Velke, testified that he was not
aware of any such written instructions. However, he was impeached with a prior
statement that he believed that "there were written instructions about what to do in the
event petitioners came on our property, and that included the aspects of the injunctions,
what to do with the injunctions."

2. McClendon stated during a deposition that he had never arrested an
initiative petitioner, and had never signed any documents indicating that he was arresting
a petitioner. However, evidence was introduced at trial that, fewer than two weeks after
Stranahan's arrest, McClendon signed a custody report concerning the arrest of another
initiative petitioner, Kellie Petersen, that stated: "I have arrested the defendant for the
charges listed."

4. In a deposition given in 1991, the Chairman of the Board and Chief
Executive Officer of Fred Meyer, Bob Miller, stated that he had no knowledge of any
Oregon law that recognized the constitutional rights of petitioners, and that he believed
that Fred Meyer had a right to exclude petitioners from its properties. The current Chief
Executive Officer, Cyril Green, testified that Fred Meyer still has a policy against
petitioning at any of its shopping centers.

"No law shall be passed restraining free expression of opinion, or
restricting the right to speak, write, or print freely on any subject whatever; but
every person shall be responsible for the abuse of this right."

7. ORS 164.205 provides the operative definition governing second-degree
criminal trespass: "To fail to leave premises that are open to the public after being
lawfully directed to do so by the person in charge."

10. We do not pretend that the criteria set forth in our previous cases are easy
to apply. The list of factors to be taken into consideration is nonexclusive, and it is not
easy to discern a unifying theme from the case law that gives sufficient guidance as to
what shopping centers are of the sort at which petitioners may exercise their
constitutional rights.

11. In PruneYard, the Court considered whether a state constitutional provision
that allowed individuals to engage in petitioning activity at a privately owned shopping
center violated its owner's property rights under the Fifth Amendment. The Court noted
that "a State in the exercise of its police power may adopt reasonable restrictions on
private property so long as the restrictions do not amount to a taking without just
compensation or contravene any other federal constitutional provision." 447 US at 81.
Whether a violation of the Takings Clause had occurred depended on "such factors as the
character of the governmental action, its economic impact, and its interference with
reasonable investment-backed expectations." Id. at 82-83 (citations omitted). The Court
concluded that a requirement that individuals be allowed to exercise state-protected
rights to petition on shopping center property "clearly" was not an unconstitutional
infringement on the property rights of the shopping center's owner. Id. at 83. The
activities in question would not unreasonably impair the value or use of the property as a
shopping center, and time, place and manner restrictions would minimize any
interference with the shopping center's commercial functions. Id.; see also Whiffen II,
315 Or at 504-06 (following PruneYard analysis). The Court also rejected the shopping
center's First Amendment claims, noting that the shopping center could expressly
disavow any connection with the petitioning activity by the simple expedient of posting
signs disclaiming sponsorship of the message and indicating that the petitioners were
there by virtue of state law. 447 US at 87; see also Whiffen II, 315 Or at 508 (following
PruneYard analysis on free speech issue).

13. Article I, section 20, of the Oregon Constitution provides: "No law shall
be passed granting to any citizen or class of citizens privileges, or immunities, which,
upon the same terms, shall not equally belong to all citizens."

The Fourteenth Amendment to the United States Constitution provides in part:
"[N]or shall any State * * * deny to any person within its jurisdiction the equal protection
of the laws."

14. The jury was instructed: "If you find that Fred Meyer had a good faith
belief that it had a legal right to treat plaintiff as a trespasser then you may not award
punitive damages to plaintiff." The jury awarded plaintiff $2 million in punitive
damages.

16. Of course, there was conflicting evidence of what that policy was. In this
case, various witnesses testified that Fred Meyer had a policy against arresting
petitioners. That evidence was rebutted by evidence that Fred Meyer did have a policy of
arresting petitioners and by evidence that a number of arrests had occurred.

17. Defendant also argues that this evidence should have been excluded as
unduly prejudicial under OEC 403. Defendant did not make that argument to the trial
court, and we will not consider it in the first instance on appeal. ORAP 5.45(2).

"(1) Punitive damages are not recoverable in a civil action unless it is
proven by clear and convincing evidence that the party against whom punitive
damages are sought has acted with malice or has shown a reckless and outrageous
indifference to a highly unreasonable risk of harm and has acted with a conscious
indifference to the health, safety and welfare of others.

"(2) If an award of punitive damages is made by a jury, the court shall
review the award to determine whether the award is within the range of damages
that a rational juror would be entitled to award based on the record as a whole,
viewing the statutory and common-law factors that allow an award of punitive
damages for the specific type of claim at issue in the proceeding.

"(3) In addition to any reduction that may be made under subsection (2) of
this section, upon the motion of a defendant the court may reduce the amount of
any judgment requiring the payment of punitive damages entered against the
defendant if the defendant establishes that the defendant has taken remedial
measures that are reasonable under the circumstances to prevent reoccurrence of
the conduct that gave rise to the claim for punitive damages. In reducing awards
of punitive damages under the provisions of this subsection, the court shall
consider the amount of any previous judgment for punitive damages entered
against the same defendant for the same conduct giving rise to a claim for punitive
damages."

That statute, however, was not in effect at the time of the trial in this case.

19. Plaintiff contends that defendant did not adequately raise the issue whether
the punitive damage award should be reduced. We disagree. The rationale behind
preservation of error rules is to give parties the opportunity to present their positions, and
to give the trial court the opportunity to consider the issue. See generallyState v. Hitz,
307 Or 183, 188, 766 P2d 373 (1988). The parties made an extensive record on this
issue, and the trial court considered their arguments. The issue is sufficiently preserved.

21. Defendant suggests that this court adopt an abuse of discretion standard of
review as to whether a trial court properly reduced a punitive damages award. That
standard of review does not comport with the Oregon Supreme Court's approach to this
issue in Oberg: "We are in as good a position as would be the trial court to apply a legal
standard to the evidence in the record." Oberg, 320 Or at 552.

22. The dissent dismisses the PruneYard cases because of the failure of the California
Supreme Court and the United States Supreme Court to "explain precisely how to identify the
sort of 'shopping center' to which the state constitutional guarantees of free expression apply."
___ Or App ___ (dissenting slip opinion at 7). In my view, that criticism is misplaced. The
Court explained:

"Most important, the shopping center by choice of its owner is not limited to the
personal use of [the owners]. It is instead a business establishment that is open to
the public to come and go as they please. The views expressed by members of
the public in passing out pamphlets or seeking signatures for a petition thus will
not likely be identified with those of the owner. Second, no specific message is
dictated by the State to be displayed on appellants' property. There consequently
is no danger of governmental discrimination for or against a particular message.
Finally, as far as appears here appellants can expressly disavow any connection
with the message by simply posting signs in the area where the speakers or
handbillers stand." PruneYard, 447 US at 87.

23. Significantly, the dissent's description of the facts in Whiffen I--and its emphasis
on the nature of the Lloyd Center's invitation to the public--are from this court's characterization,
Lloyd Corporation v. Whiffen, 89 Or App 629, 631, 750 P2d 1157 (1988), aff'd on other grounds
307 Or 674, 773 P2d 1294 (1989), not the Supreme Court's. The Supreme Court's opinion
describes the Lloyd Center and then notes that

"[t]he privately owned mall and walkways are designed, decorated, and
managed to promote retail business, to please plaintiff's tenants and their
customers, clients, and patients, and to encourage prospective customers to come
to the Center where they may view and buy merchandise or partake of services."

Whiffen I, 307 Or at 677-78. The Supreme Court's description in Whiffen I is devoid of reference
to any noncommercial invitation to the public.

24. Apparently the dissent believes that the Supreme Court's decision in
Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993), is relevant
to the analysis in this case. The dissent is wrong. In Huffman and Wright, one of the
issues was whether the First Amendment to the United States Constitution protected the
defendants from an award of punitive damages for trespass on the plaintiff's personal
property. The court concluded that the First Amendment does not provide the shield that
the defendants claimed, because "[d]evotion of private property to public use requires, at
a minimum, the owner's invitation to the general public to enter the premises." Id. at 461.
The Court's citation to Marsh in that context, a free speech case, is simply irrelevant in
this case. In Whiffen II, the court made clear that it adopted the statement from Marsh
because in cases arising under Article IV, section 1, of the Oregon Constitution, the
rights of private property owners who use their property for commercial purposes are
circumscribed by the constitutional rights of signature gatherers.

26. The concurrence suggests that my criticism of the California Supreme
Court opinion in this regard is misplaced. It then quotes from the United States Supreme
Court opinion in refutation of the criticism. ___ Or App at ___ (concurring slip opinion
at 5 n 1). I do not understand how what the United States Supreme Court said answers
my concern about the vagueness of the California Supreme Court's opinion. In any
event, the portion of the United States Supreme Court opinion that the concurrence
quotes says only that the shopping center at issue in Pruneyard is "a business
establishment that is open to the public to come and go as they please[,]" an observation
that would hold true for virtually any commercial enterprise. Pruneyard Shopping
Center v. Robins, 447 US 74, 87, 100 S Ct 2035, 64 L Ed 2d 741 (1980).

27. The lead opinion finds my recapitulation of the United States Supreme
Court's First Amendment case law "puzzling" and asserts that "it does not directly
contribute to an analysis of initiative petitioning activity protected under Article IV,
section 1[.]" ___ Or App at ___ (lead slip opinion at 20). The failure of the lead opinion
to recognize the relevance of that case law is precisely one of my complaints with its
analysis. The case law, in particular the United States Supreme Court's narrow reading
of Marsh in Lloyd and Pruneyard, is quite relevant, for in the Oregon Supreme Court's
cases describing the activity protected under Article IV, section 1, the court explicitly
made reference to, and relied on Marsh. See text at ___, infra (dissenting slip opinion at
10-11). Especially in the light of the fact that the court has stated--without further
explanation--that it is relying on the rationale in Marsh, it seems to me fairly important to
determine what the United States Supreme Court actually said in that case.

28. The concurrence takes me to task for quoting from this court's recitation of
the facts and notes that "[t]he Supreme Court's description in Whiffen I is devoid of
reference to any noncommercial invitation to the public." ___ Or App at ___ (concurring
slip opinion at 6 n 2). What the concurrence says certainly is true, but it also is of no
moment. There was no need for the Supreme Court to mention the scope of the owner's
invitation because it did not decide the case on constitutional grounds. This court did.

29. This is not a novel or revisionist reading of Cargill. See, e.g., State v.
Purdue, 111 Or App 586, 589 n 2, 826 P2d 1037 (1992) ("In Cargill, we held that the
constitutional right to circulate an initiative petition under Article IV, section 1, barred
prosecution for trespass on private property when the owner of the property had invited
the public to use that particular property for more than commercial activity so as to
make the property a public forum." (emphasis supplied)).

30. See, e.g., Ian J. McPheron, From the Ground to the Sky: The Continuing
Conflict Between Private Property Rights and Free Speech Rights on the Shopping
Center Front Seventeen Years After Pruneyard, 16 N Ill U L Rev 717, 732 (1996)
("Whiffen II did not add much to the substantive analysis of the issues * * * except to
increase the number of states that allow access to shopping centers for the initiative
process.").

31. There is language in State v. Dameron, 316 Or 448, 853 P2d 1285 (1993)
that recalls the "large shopping center" rationale of Logan Valley Plaza. The lead
opinion that contains that language, however, is one of six separate opinions, and the
case was resolved explicitly on nonconstitutional grounds. Dameron, 316 Or at 462
("Because we decide this issue on a narrow and subconstitutional ground, it is not
necessary for this court to draw the line for all time and for all future cases involving
claims of constitutional rights to seek signatures on initiative petitions on private
property.").

The concurrence complains that I am too "offhanded[]" in my reading of
Dameron. ___ Or App at ___ (concurring slip opinion at 11). According to the
concurrence, a majority of the court agreed with the lead opinion's rejection of the
conclusion "that there is no state constitutional right to gather petition signatures on
private property." Id. (quoting Whiffen II, 316 Or at 462). The observation is correct
enough. It is simply beside the point. Four justices may have agreed with the quoted
conclusion, but only two agreed on the reason for it.

32. It is also how we characterized Whiffen I. Wabban, 142 Or App at 265
(describing Whiffen I as "holding that signature gatherers could not be enjoined from
gathering signatures at the Lloyd Center because the Center's invitation to the public 'was
broad and for more than commercial activity'" (quoting Whiffen I, 89 Or App at 637)).

33. Oregon follows that basic principle of real property law. Illustrating the
point is State v. Donahue, 93 Or App 341, 762 P2d 1022 (1988), rev den 307 Or 303
(1989). In that case, a police officer followed a power company meter reader onto
private property and, while on the property, saw evidence of a crime. Based in part on
those observations, the officer obtained a warrant to search the premises. This court held
that the observations could not be considered a basis for the issuance of the warrant,
because the officer's entry onto the land constituted trespass. In response to the state's
argument that there was implied permission to have individuals enter the area near the
property owner's meter, we held that:

"Although we can agree that there must be implied permission for a utility
company employe[e] to come on the property, we do not agree that the
implied permission constitutes an open-ended waiver of defendant's
privacy. The police officer went on the property for the purpose of
obtaining evidence of a criminal law violation and was not acting within
the scope of the implied permission for a meter reader to come on the
property."

34. In Pruneyard, the United States Supreme Court held that, although "there
has literally been a 'taking'" to the extent that the California Supreme Court required
owners of private property to allow public signature gathering on their premises, because
the physical invasion was of such a limited nature, no violation of the Fifth Amendment
occurred. Pruneyard, 477 US at 82-84. In contrast, the Court decided two years later in
Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 102 S Ct 3164, 73 L Ed
2d 868 (1982), that a state law requiring landlords to permit the installation of a tiny
cable television connection did constitute a violation of the takings clause of the Fifth
Amendment. The Court purported to distinguish its Pruneyard decision on the ground
that the "invasion" in that case was "temporary and limited in nature[.]" Loretto, 458 US
at 434. The distinction has been criticized as less than persuasive. See, e.g., Laurence H.
Tribe, American Constitutional Law 599-604 (2d ed 1988) (characterizing the rationale
of Loretto as "lame" and commenting that the Court had "abandoned" its approach in
Pruneyard); Robert M. DiGiovanni, Note, Eminent Domain--Loretto v. Teleprompter
Manhattan CATV Corp.: Permanent Physical Occupation as a Taking, 62 NCL Rev
153, 159 (1983) (Loretto is inconsistent with Pruneyard).

The Oregon Supreme Court appears not to have adopted the United States
Supreme Court's distinction of Pruneyard and Loretto. In GTE Northwest, Inc. v. Public
Utility Commission, 321 Or 458, 900 P2d 495 (1995), cert den 517 US 1155 (1996), the
trial court declared unconstitutional a Public Utility Commission rule that required GTE
to permit other local exchange telephone companies temporarily to "collocate" on GTE
property connecting switching equipment. We held that the collocation rule did not
constitute a taking under the Fifth Amendment, because the rule allowed only a
temporary physical invasion. GTE Northwest, Inc. v. Public Utility Commission, 130 Or
App 637, 644, 883 P2d 255, rev'd 321 Or 458 (1995). The Supreme Court reversed,
citing Loretto. The court held that we had "misread[] the [United States] Supreme
Court's 'physical invasion' jurisprudence." GTE Northwest, Inc., 321 Or at 473.
According to the Supreme Court, "[t]he duration of the 'taking' by physical invasion is
not relevant to the determination of whether a 'taking' has occurred." Id. (emphasis in
original).

If what the Oregon Supreme Court said in GTE about Pruneyard and
Loretto is correct, then the distinction between Pruneyard and Loretto is a blurry one,
indeed; and the Fifth Amendment may pose a more significant constraint on the extent to
which state constitutions may permit interference with private property rights than recent
cases have suggested. The Oregon Supreme Court seems to be saying that the most
trivial of physical invasions--even temporary ones--constitute a taking under the Fifth
Amendment. If so, then it seems to follow that requiring property owners to permit
uninvited members of the public to use their property to collect petition signatures--even
temporarily--would pose a significant takings problem.

The lead opinion finds my references to recent takings cases "puzzling." ___ Or
App at ___ (lead slip opinion at 20). It then attempts to demonstrate at length why "it
simply does not follow that Fred Meyer could arrest Stranahan, a private citizen, because
its constitutional rights were supposedly being violated by the state." Id. at ___ (lead
slip opinion at 21). In so doing, the lead opinion wastes much ink attacking a position
that I do not take. My point is much simpler: The constitutional analysis that I propose--indeed, that I say exists in the caselaw already--has historical and conceptual roots in the
common law of trespass and decisions relating to the federal and state takings clauses.
The analysis that the lead opinion applies does not.

35. The size of a store, for example, has no independent significance. I dare
say that a small country store with a pot-bellied stove and a checkers table around which
members of the public have gathered for years to discuss the day's events--without
spending a dime--very likely would be regarded as a place to which the public has been
invited for the purpose of noncommercial assembly. Similarly, the fact that a store may
lease space to a tenant, by itself, means nothing. If such factors have relevance to the
inquiry at all, it is only to the extent that it follows that larger shopping centers with
multiple tenants are more likely to have common areas to which the public can be invited
to assemble for noncommercial purposes. Thus, the Supreme Court's explicit limitation
in Whiffen II that

"we do not hold that a person pursuing signatures may go 'anywhere one
pleases' on the property of the Lloyd Center. We hold only that such
persons may seek such signatures in the common areas of the Lloyd
Center, subject to reasonable time, place and manner restrictions."